DRIVING WHILST USING A MOBILE PHONE

Regulation 300 (set out below) relating to drivers using a mobile phone was amended on the 1st November 2012 to include within the definition of ‘use’:

(a) holding the body of the phone in her or his hand (whether or not engaged in a phone call), except while in the process of giving the body of the phone to a passenger in the vehicle.

As to the word “use”, guidance to the section and in particular the word “use” can be taken from the case of DPP v Chresta [2005] NSWSC 233 (14 March 2005) where His Honour, James J at paras 9 and 17 to 20 attempts to clarify how wide the word “use” should be construed. But essentially His Honour stated at para 17 in relation to the word ‘use’- “…Road Rule 300 is to be construed as meaning that the operation of, by hand of hand-held mobile phone while the vehicle is moving. Is to be treated as an offence under the Road Rules and the Regulation” (emphasis is mine). It should be noted that in Chresta the touching of a button on the phone to turn the phone off or on, was considered to be an operation of the phone.

Regulation 300-1 (set out below) prohibits the use of a mobile phone by a learner or P1 licence holder whilst the vehicle is moving or is stationary but not parked.

ROAD RULES 2008 - REG 300

300 Use of mobile phones by drivers (except holders of learner or provisional P1 licences)

(1) The driver of a vehicle must not use a mobile phone while the vehicle is moving, or is stationary but not parked, unless:

(a) the phone is being used to make or receive a phone call (other than a text message, video message, email or similar communication) or to perform an audio playing function and the body of the phone:

(i) is secured in a mounting affixed to the vehicle while being so used, or

(ii) is not secured in a mounting affixed to the vehicle and is not being held by the driver, and the use of the phone does not require the driver, at any time while using it, to press any thing on the body of the phone or to otherwise manipulate any part of the body of the phone, or

(b) the phone is functioning as a visual display unit that is being used as a driver’s aid and the phone is secured in a mounting affixed to the vehicle, or

(c) the vehicle is an emergency vehicle or a police vehicle, or

(d) the driver is exempt from this rule under another law of this jurisdiction.

Maximum penalty: 20 penalty units.

Note:

"Emergency vehicle" ,

"park" and

"police vehicle" are defined in the Dictionary.

Note: See rule 299 (2) for examples of driver’s aids.

Note: Subrule (1) is not uniform with the corresponding subrule in rule 300 of the Australian Road Rules . Different rules may apply in other Australian jurisdictions.

(2) For the purposes of this rule, a mobile phone is secured in a mounting affixed to the vehicle only if:

(a) the mounting is commercially designed and manufactured for that purpose, and

(b) the mobile phone is secured in the mounting, and the mounting is affixed to the vehicle, in the manner intended by the manufacturer.

(3) For the purposes of this rule, a driver does not use a phone to receive a text message, video message, email or similar communication if:

(a) the communication is received automatically by the phone, and

(b) on and after receipt, the communication itself (rather than any indication that the communication has been received) does not become automatically visible on the screen of the phone.

(3-1) This rule does not apply to the driver of a vehicle who is the holder of a learner licence or a provisional P1 licence.

Note:

"Provisional P1 licence" is defined in the Dictionary and

"learner licence" is defined in the Act.

Note: Rule 300-1 provides for the use of mobile phones by drivers who are holders of learner licences or provisional P1 licences.

Note: This subrule is an additional NSW subrule. There is no corresponding subrule in rule 300 of the Australian Road Rules .

(4) In this rule:

"affixed to" , in relation to a vehicle, includes forming part of the vehicle.

"body" , in relation to a mobile phone, means the part of the phone that contains the majority of the phone’s mechanisms.

"held" includes held by, or resting on, any part of the driver’s body, but does not include held in a pocket of the driver’s clothing or in a pouch worn by the driver.

"mobile phone" does not include a CB radio or any other two-way radio.

"use" , in relation to a mobile phone, includes any of the following actions by a driver:

(a) holding the body of the phone in her or his hand (whether or not engaged in a phone call), except while in the process of giving the body of the phone to a passenger in the vehicle,

(b) entering or placing, other than by the use of voice, anything into the phone, or sending or looking at anything that is in the phone,

(c) turning the phone on or off,

(d) operating any other function of the phone.

ROAD RULES 2008 - REG 300-1

300-1 NSW rule: use of mobile phones by drivers who are holders of learner and provisional P1 licences

(cf RRR, cl 47F)

(1) The driver of a vehicle (except an emergency vehicle or police vehicle) who is the holder of a learner licence or provisional P1 licence must not use a mobile phone, whether or not held by the driver, while the vehicle is moving or is stationary but not parked.

Maximum penalty: 20 penalty units.

Note:

"Emergency vehicle" ,

"park" ,

"police vehicle" and

"provisional P1 licence" are defined in the Dictionary, and

"learner licence" is defined in the Act.

(2) In this rule,

"mobile phone" and

"use" have the same meanings as in rule 300.

Note: This rule is an additional NSW road rule. There is no corresponding rule in the Australian Road Rules .

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Dpp v Chresta [2005] NSWSC 233 (14 March 2005)

NEW SOUTH WALES SUPREME COURT

CITATION: DPP v CHRESTA [2005] NSWSC 233

CURRENT JURISDICTION: Common Law

FILE NUMBER(S): No 13744/2004

HEARING DATE{S): 14/04/2005

JUDGMENT DATE: 14/03/2005

PARTIES:

DIRECTOR OF PUBLIC PROSECUTIONS v Nathalie CHRESTA

JUDGMENT OF: Greg James J

LOWER COURT JURISDICTION: Local Court

LOWER COURT FILE NUMBER(S):

LOWER COURT JUDICIAL OFFICER: Mr A W Railton LCM

COUNSEL:

Plaintiff: Ian Bourke

Defendant: In person

SOLICITORS:

Plaintiff: S C. Kavanagh, acting solicitor for the DPP.

CATCHWORDS:

Criminal Law - Traffic Offences - Use of a hand held mobile phone - When criminal.

1 HIS HONOUR: This is an appeal by the Director of Public Prosecutions of New South Wales in respect of the decision of a Local Court magistrate made on 26 July 2004 dismissing a charge brought against the defendant, Miss Nathalie Chresta, for a breach of the Road Transport (Safety and Traffic Management) (Road Rules) Regulation 1999, which regulation incorporates into the law of New South Wales the Australian Road Rules. The regulation is made under the Road Transport (Safety and Traffic Management) Act 1999.

2 The appeal is brought as of right under s 56 of the Crimes (Local Courts Appeal and Review) Act 2001. Such an appeal may be brought "only on a ground that involves a question of law alone". On determining such an appeal, the Court may set aside the order made by the magistrate and make such other order as it thinks just.

3 The magistrate in dismissing the charge acquitted the defendant. The magistrate had held a prima facie case against the defendant on the charge brought against her. That charge is referred to in the Court attendance notice, which is annexure “A” to the affidavit of Rodney Vincent Paul, solicitor, sworn 11 November 2004.

4 The details of the offence there shown allege that the defendant did "drive using hand-held phone". (Police officers gave evidence before the magistrate that they observed the defendant holding a mobile phone to her ear whilst the vehicle was in motion.)

5 The defendant gave evidence to the following effect:

“A. Well I notice that I seem to have conflicting view with the officers in regards to the time span that I should have held a phone next to my phone and as I was saying in my statement, I did have the phone in my hand merely to switch it off so my son wouldn't wake up. That may have looked for a moment like I did talk on the phone but I actually didn't and I tried to get invoice, a detailed invoice from my phone company which shows that I didn't go - do any outgoing calls. They don't have any records of incoming calls. I can't prove that side. What I can prove is that my phone has a speaker function, which requires me to just press one button, and then I can just leave it untouched. So I never really have the need to put the phone next to my ear for longer than really a second. I'm not using the phone in the car to speak.”

6 The defendant gave evidence of the hand movements she had been making, what hand she had used, that she had not been talking; she referred to her friend sitting in the seat next to her and her phone ringing in the back which was at the friend's feet:

“I asked her to get the phone out and she was fiddling around with it and it was ringing and I didn't want my son to get out, to wake up so I took the phone from her and switched it off. It was a new phone so I wasn't quite sure of what to do myself."

7 She referred to her checking the phone to ensure that it was off by raising it to her ear.

8 In cross-examination her evidence was not in any substantial respect shaken. The magistrate, after hearing from the parties as to the appropriate definition of the term "use", refined the question before him to ascertaining whether it was a use of the phone to turn it off. Examination was made before the magistrate of various dictionary definitions of “use”.

9 The magistrate then said after Miss Chresta said:

"Your Honour may I have an opportunity to talk?” “HIS HONOUR: I do not know that you are going to need to Ma'am. The bottom line is if I am still quibbling here with these definitions the onus is on the prosecution to prove their case against you beyond a reasonable doubt. What the police saw certainly entitled them to stop you. I do not have any quibble with that. It really comes down to the definition section, which is so broad. But use, I think, reading through all these definitions in the Macquarie Concise Dictionary certainly tends to go to the word "to operate" and "to put into effect". Putting into effect here I do not know that turning it off can be said to put it into effect. There seems to be a positive connotation from the words in all these various definitions and until and unless the Act is made a little bit more specific so far as you are not to handle, you know, a mobile phone while vehicle is in motion or something like that. I just cannot be positive that that is what is contained here so, subject to whatever else you want to say sergeant, I think I am going to have to dismiss it. PROSECUTOR: Yes your Honour. I can't offer anything further to the Court at this stage your Honour. HIS HONOUR: I do not think I can say any more than I already have. The definition is - or the word in the section is so broad that I cannot be satisfied that the actions here which are totally consistent with what the police saw and entitle them to pull her over but we also cannot argue with what she says because they were not in the car and she certainly did deny it at the time. SO THE INFORMATION HAS TO BE DISMISSED. So that is it Ma'am. You are free to go. ”

10 The offence is constituted by a breach of the Regulations so far as they adopt the Australian Road Rules and in particular Road Rule 300.

11 Road Rule 300 provides 300(1):

“The driver of a vehicle (except an emergency vehicle or police vehicle) must not use a hand-held mobile phone while the vehicle is moving or is stationary but not parked unless the driver is exempt from this rule under another law of this jurisdiction.”

12 The Australian Road Rules contain a dictionary of definitions. None of them assists with the definition of "use". It is apparent that no exemption under another law of this jurisdiction is here applicable. The relevant rule is contained in Part 18 of the Road Rules headed Miscellaneous Road Rules and in Division 1 headed Miscellaneous Rules For Drivers. Those rules contain rules dealing with the duty of a driver involved in a crash, the duty not to drive on a path or nature strip or traffic island, make unnecessary noise or smoke, securing an insecure or overhanging load, the necessity to remove fallen things from the road, to keep control of a towed vehicle, regulation of towing with a tow line, the necessity to have more control of the vehicle, the requirement to abstain from driving with a person in the trailer, not to have a telephone receiver or device whilst the vehicle is in motion... There are also rules in Division 2 for people in charge of animals.

13 It becomes difficult in that context to say, other than as has the prosecution in a written submission, that there is a general intent behind the rules to achieve safety. This gives little assistance, however, in considering the particular purpose in rule 300. In argument various situations were described with a view to testing how wide the term "use" might be. It was accepted that to use the phone otherwise than as an instrument of communication might well not be within the definition.

14 The distraction, to which the safety requirement said to be behind the rule might apply, would occur in the receiving and making of communications but, of course, that is not the only way hand-held mobile phones may be used. They may be used nowadays, not only as message-sending devices, but also as cameras for the purpose of photography, music playing devices, calendars or calculators, they may have all manner of functions, but they are still popularly described, even when those other functions or uses are being resorted to, as hand-held mobile phones.

15 It was accepted that the simple use of the phone as, eg, a bludgeon to deal with some insect or pest, would not be within Rule 300, although, on one view of it, it might produce a situation equally if not more unsafe than a use to communicate.

16 It was submitted that if one turns to dictionaries one would see various uses of the term "use" such that the DPP contends the mere operation of the mobile phone for the purpose of turning it on or off would be a use of the mobile phone, although the checking of it that it was turned off would perhaps be less likely to be so considered.

17 The word "use" is notoriously wide in its ambit and on occasions varying in its application, however I accept the submission made that its occurrence in Australian Road Rule 300 is to be construed as meaning that the operation of, by hand of a hand-held mobile phone while the vehicle is moving, is to be treated as an offence under the Road Rules and the Regulation.

18 I accept that the purpose of the legislation is, at least, to proscribe the operation of the communication function or the device to give the potential for such function and to proscribe that use of the device as involves the removal of a driver's proper attention from the road and the hand or hands from the safe operation of the vehicle.

19 It is notable that on the web site of the RTA are references to "breaches with a mobile phone in your hand" and the "stopping in a safe place if you need to make a call or retrieve a message". There is also a reference to it being illegal to "drive or operate a vehicle while using a hand-held mobile phone". The site says, "Talking, sending or receiving text messages, playing games or taking phone calls are illegal when using a hand-held phone and these functions appear to be regarded as functions that are included in the use for communication of the phone, i.e. for the reception or non-reception of calls. These latter two functions are initiated by actions required to turn the phone on and off i.e. to make it operational or non-operational.

20 So far as what the RTA might say on their web site about these functions is concerned, of course that is not an aid to construction of the term “use” in the Australian Road Rules. It does, however, illustrate how much wider the word "use" might be more popularly thought to be than simply restricted to the uses of the device to make oral person-to-person communications. But, what is shown on the web site is consistent with the Director’s submission, which I hold is correct, that whilst driving, to turn the phone on or off is a use, which is within the section. It is an operation of the phone. It would be even more an operation if communications were to be made or received.

21 It is not necessary for me to have regard to the numerous modern authorities as to the construing of penal statutes since in my view the use of the word "use" here is quite clear.

22 I have, therefore, come to the view that the magistrate erred in law. However, s 59 of the Act provides that I might make any such other order as the Court thinks just in the circumstances.

23 This is an appeal against an acquittal. The magistrate's findings make it perfectly clear that the magistrate did not regard the action of the defendant, who gave evidence of those actions and whose evidence was accepted, as displaying any real degree of culpability such that she should receive any penalty under the provisions of the Act and/or the Regulations.

24 I do not see that there is any interest to be served by remitting the matter to the magistrate or setting aside the acquittal. In my view the appropriate course, which is the course for which the Director has elected, is that I publish these reasons as to why the magistrate's determination of the ambit of the offence was incorrect, confirming that the ambit is sufficiently wide to include the use of the hand held phone by turning it on or off or operating it, including by sending text, telephone or other messages or receiving them through it, or operating from it any of its functions to communicate as might serve to distract the driver from having both hands and full attention engaged upon the task of driving.

25 In these circumstances, I decline to make the order sought in paragraph 1 of the summons. I make an order in terms of paragraph 2 of the summons. I note that the Director does not seek costs.